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Political Law Blog

Welcome to the Holland & Knight Political Law Blog, featuring news and analysis related to federal and state campaign finance, ethics and lobbying disclosure laws, as well as Congressional gift and travel rules. We provide a regular review of happenings at the Federal Election Commission and analysis of a variety of federal and state topics of interest to our readers.

The Department of Justice announced on Jan. 17, 2019, that it had reached a settlement with a law firm over the failure to properly register and report under the Foreign Agents Registration Act (FARA).
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When interacting with the federal government, including the legislative branch, it is essential that all statements, whether written or verbal, be completely truthful. This is the case when providing testimony and also when submitting documents to Congress, including Lobbying Disclosure Act (LDA) filings, private sponsor travel certifications, and financial disclosure forms.
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As control of the U.S. House of Representatives shifts to Democrats during the next Congress and we enter the presidential election cycle, now is a good time for entities that regularly interact with the federal government to assess their government affairs activities – both internal and external – to ensure effectiveness and compliance with federal, state, and local campaign finance, lobbying, and ethics laws.
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The U.S. Department of Justice (DOJ) Office of Inspector General in September 2016 published an audit report regarding compliance and enforcement of the Foreign Agents Registration Act (FARA).
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Last month, a Washington consultant providing political intelligence was convicted of stealing secrets from the government and using it for insider trading. The consultant, who had worked at several Washington, D.C. based firms, was charged with obtaining from an employee of the Centers for Medicare and Medicaid Services (CMS) confidential and nonpublic information he then sold to hedge fund portfolio managers who used it make or recommend profitable stock trades in advance of the information's public release.
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The National Defense Authorization Act for Fiscal Year 2018 (NDAA), signed into law on Dec. 12, 2017, imposes new lobbying restrictions on former military officers grade O-7 and higher and civilians of the same grade equivalents (Executive Schedule Level V and higher) at the Department of Defense (DoD). These new restrictions apply in addition to existing post-employment restrictions and Executive Order 13770.
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With disclosure issues currently receiving significant attention within the Department of Justice (DOJ) and Congress considering changes to the relationship between the Foreign Agents Registration Act of 1938, as amended (FARA) and the Lobbying Disclosure Act of 1995, as amended (LDA), now is a good time to review your internal disclosure compliance programs.
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On October 31, 2017, Senator Chuck Grassley, Chairman of the Senate Judiciary Committee, introduced S. 2039, the Disclosing Foreign Influence Act. An identical bill, H.R. 4170, was introduced in the House by Congressman Mike Johnson, a member of the House Judiciary Committee. These proposed bills would remove the current exemption under the Foreign Agents Registration Act of 1938, as amended (FARA), for registrants properly disclosing under the Lobbying Disclosure Act of 1995, as amended (LDA).
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The Lobbying Disclosure Act of 1995, as amended (LDA), is a federal lobbying statute administered by Congress that applies to legislative and executive branch contacts. The LDA does not apply to state or local lobbying. The LDA requires registration and then disclosure of certain lobbying activities, including the issues lobbied, individual lobbyists, and lobbying costs. LDA violations are subject to fines of up to $200,000 per violation and, in some cases, up to 5 years in prison. The LDA is a companion statute to the Foreign Agents Registration Act of 1938, as amended (FARA).
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On April 25, the Senate Finance Committee approved a waiver which was included in the FY17 Omnibus Appropriations bill (H.R. 244), which passed the House and Senate on May 4, 2017, and was signed into law on May 5, 2017.
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On Jan. 3, 2017, the first day of the 115th Congress, a somewhat obscure office located within the U.S. House of Representatives – the Office of Congressional Ethics (OCE) – received significant media coverage because of a provision contained in the proposed House Rules package that would have changed the name of the office and altered some of its functions. The provision related to the OCE was subsequently removed from the House Rules package before it was finalized, but concerns about the OCE are likely to continue.
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Most federal agencies do not take their obligations under the Lobbying Disclosure Act (LDA) seriously, and as a result it is often difficult to confirm an executive branch covered official under the LDA. Our Political Law Blog provides alternative methods for determining whether an agency official is a covered official.
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The collection and use by financial firms of non-public information derived from Congress and federal agencies – commonly referred to as "political intelligence" - has been receiving some significant scrutiny from the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) lately.
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We have observed a significant amount of confusion lately regarding the Foreign Agents Registration Act of 1938 (FARA) and when it applies. Holland & Knight's Political Law Blog provides a brief primer on FARA and its relationship to the better known Lobbying Disclosure Act.
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With first quarter lobbying disclosure reports due right around the corner, now is often the time of year when lobbying registrants look to estimate their lobbying expenses for the prior quarter. If they are members of trade association, this includes determining what percentage, if any, of their trade association dues are reportable as lobbying expenses.
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Several federal contractors have been in the news recently for potentially engaging in prohibited lobbying activity. Both the Department of Justice and the Department of Defense Inspector General have been focusing on this issue. This restriction applies to any recipient of a federal contract, grant, loan or cooperative agreement and specifically prohibits using federally appropriated funds to influence the executive branch or Congress in connection with any federal contract, grant, loan, or cooperative agreement.
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Although 501(c)(4) organizations have been in the news recently for potentially engaging in too much political activity, it is worth noting that a relatively obscure Senate amendment from 1995 prohibits lobbying by certain 501(c)(4)s. While the Internal Revenue Code permits entities exempt from federal taxation under section 501(c)(4) of the Internal Revenue Code (IRC), known as social welfare organizations, to engage in almost unlimited amounts of lobbying, the Lobbying Disclosure Act (LDA) prohibits these organizations from engaging in federal lobbying activities if they receive a federal grant, loan, contract or other award.
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